Com. v. Thompson, C. ( 2021 )

J-A11026-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CHARLES CAGLE THOMPSON :
:
Appellant : No. 991 WDA 2020
Appeal from the Order Entered September 8, 2020
In the Court of Common Pleas of Jefferson County
Criminal Division at No(s): CP-33-CR-0000279-2015
BEFORE: McLAUGHLIN, J., KING, J., and McCAFFERY, J.
MEMORANDUM BY KING, J.: FILED: JUNE 28, 2021
Appellant, Charles Cagle Thompson, appeals from the order entered in
the Jefferson County Court of Common Pleas, following a remand hearing to
decide Appellant’s appropriate registration requirements under the Sexual
Offender Registration and Notification Act (“SORNA II”).1 For the following
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1 Following Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d 1189 (2017)
(plurality), cert. denied, ___ U.S. ___, 138 S.Ct. 925, 200 L.Ed.2d 213 (2018)
and Commonwealth v. Butler, 173 A.3d 1212 (Pa.Super. 2017) (“Butler
I”), rev’d, ___ Pa. ___, 226 A.3d 972 (2020) (“Butler II”), the Pennsylvania
General Assembly enacted legislation to amend SORNA I. See Act of Feb. 21,
2018, P.L. 27, No. 10 (“Act 10”). Act 10 amended several provisions of SORNA
I, and also added several new sections found at 42 Pa.C.S.A. §§ 9799.42,
9799.51-9799.75. In addition, the Governor of Pennsylvania signed new
legislation striking the Act 10 amendments and reenacting several SORNA I
provisions, effective June 12, 2018. See Act of June 12, 2018, P.L. 1952, No.
29 (“Act 29”). Through Act 10, as amended in Act 29 (collectively, SORNA
II), the General Assembly split SORNA I’s former Subchapter H into a Revised
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reasons, we deny counsel’s petition to withdraw and remand for the filing of
an advocate’s brief.
This Court has previously set forth the relevant facts of this case as
follows:
In 2001, Appellant pled guilty in Mesa County, Colorado to
ten counts of sexual exploitation of a child, per C.R.S.A. §
18-6-403(3)(b.5). As a result, Appellant was required
under Colorado law to register as a sex offender for a
minimum of ten (10) years. After the ten years expired,
Appellant became eligible to petition the Colorado court to
remove him from the registry. In 2010, while the ten-year
Colorado registration requirement was still in effect,
Appellant moved to Pennsylvania. When the ten-year
registration period expired, Appellant did not…petition the
Colorado court for removal from the registry, so his
registration requirements continued.
On August 18, 2015, the Commonwealth charged Appellant
for failing to update his information as required under
SORNA. The Commonwealth alleged that between February
2, 2015, and February 25, 2015, Appellant failed to notify
the Pennsylvania State Police (“PSP”) within three business
days of his change of address from Hamilton, Pennsylvania
to Punxsutawney, Pennsylvania, in violation of 18 Pa.C.S.A.
§ 4915.1(a)(1). On August 3, 2016, Appellant entered a
guilty plea to failure to comply with registration
requirements, and the court sentenced Appellant to five (5)
to ten (10) years’ imprisonment, plus ten (10) years’
probation. Appellant did not seek direct review.
On July 31, 2017, Appellant timely filed a pro se PCRA
petition, and the court subsequently appointed counsel.
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Subchapter H and Subchapter I. Subchapter I addresses sexual offenders
who committed an offense on or after April 22, 1996, but before December
20, 2012. See 42 Pa.C.S.A. §§ 9799.51-9799.75. Subchapter I contains less
stringent reporting requirements than Revised Subchapter H, which applies to
offenders who committed an offense on or after December 20, 2012. See 42
Pa.C.S.A. §§ 9799.10-9799.42.
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Counsel filed an amended petition on October 6, 2017,
claiming, inter alia, SORNA was unconstitutionally applied to
Appellant, and the offense of Appellant’s failure to comply
with registration requirements was improperly graded as a
Felony 1. The PCRA court held a hearing on January 30,
2018. On February 8, 2018, the court granted relief in part
and denied relief in part. Specifically, the court granted
Appellant relief on the grading challenge and ordered
resentencing. The court, however, denied PCRA relief
regarding the SORNA/Muniz claim, explaining that SORNA
did not function as an unconstitutional ex post facto law in
Appellant’s case because SORNA had not created or
enhanced his reporting requirements. Rather, the court
stated Appellant’s continuing obligation to report stemmed
from his Colorado convictions and his failure to petition the
Colorado court for release from his duty to register.
Commonwealth v. Thompson, No. 1342 WDA 2018, at 1-3 (Pa.Super. filed
January 14, 2020) (unpublished memorandum) (internal footnote omitted).
On August 15, 2018, the court resentenced Appellant to 28 months’ to
10 years’ imprisonment. On that same day, Appellant filed a post-sentence
motion, which the court denied. Appellant filed a notice of appeal on
September 13, 2018. On appeal, Appellant argued that his Colorado
convictions predated the effective date of SORNA I, such that SORNA I did not
apply to him. Appellant contended the court retroactively applied SORNA I,
in violation of the ex post facto clauses of the United States and Pennsylvania
Constitutions. Thus, Appellant insisted the ex post facto application of SORNA
I invalidated his conviction for failure to comply with registration requirements
and rendered his sentence illegal under Muniz.
This Court agreed with Appellant’s contentions and, on January 14,
2020, vacated and remanded for further proceedings. Specifically, this Court
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explained that a retroactive application of SORNA I to pre-SORNA I sex
offenders violated the ex post facto clauses of the United States and
Pennsylvania Constitutions. Appellant committed his offenses in Colorado
before the effective date of SORNA I, when Megan’s Law II was operative in
Pennsylvania. Because Appellant’s underlying sex offenses occurred prior to
the effective date of SORNA I, SORNA I did not apply to his case and the
unconstitutional ex post facto application of SORNA I to Appellant invalidated
his guilty plea to “violating SORNA I.” Thus, this Court reversed the conviction
for failure to register and vacated the judgment of sentence for failing to
comply with SORNA I. Nevertheless, because Appellant had failed to petition
the Colorado court to discontinue his registration duties, Appellant was still
required to register in Pennsylvania. Consequently, this Court remanded for
the trial court to determine Appellant’s appropriate registration requirements.
See Thompson, supra at 5-7.
The trial court held a remand hearing to determine Appellant’s
registration requirements on August 21, 2020. On August 27, 2020, the court
ordered Appellant to register for life under Revised Subchapter H of SORNA
II. Appellant timely filed a motion for reconsideration, which the court granted
on September 8, 2020, directing Appellant to register under Subchapter I2 for
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2 The trial court correctly decided that Appellant was subject to reporting
requirements under Subchapter I because Appellant committed his Colorado
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life. Appellant timely filed a notice of appeal on September 18, 2020. The
court subsequently ordered Appellant to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. On September 25, 2020,
counsel filed a Pa.R.A.P. 1925(c)(4) statement of counsel’s intent to file an
Anders3 brief in this Court.
As a preliminary matter, counsel seeks to withdraw his representation
pursuant to Anders and Commonwealth v. Santiago, 602 Pa. 159, 978
A.2d 349 (2009). Anders and Santiago require counsel to: (1) petition the
Court for leave to withdraw, certifying that after a thorough review of the
record, counsel has concluded the issues to be raised are wholly frivolous; (2)
file a brief referring to anything in the record that might arguably support the
appeal; and (3) furnish a copy of the brief to the appellant and advise him of
his right to obtain new counsel or file a pro se brief to raise any additional
points the appellant deems worthy of review. Santiago, supra at 173-79,
978 A.2d at 358-61. Substantial compliance with these requirements is
sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.
2007). After establishing that counsel has met the antecedent requirements
to withdraw, this Court makes an independent review of the record to confirm
that the appeal is wholly frivolous. Commonwealth v. Palm, 903 A.2d 1244,
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offenses between April 22, 1996 and December 20, 2012. See 42 Pa.C.S.A.
§§ 9799.51-9799.75.
3 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
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1246 (Pa.Super. 2006).
In Santiago, supra, our Supreme Court addressed the briefing
requirements where court-appointed appellate counsel seeks to withdraw
representation:
Neither Anders nor [Commonwealth v. McClendon, 495
Pa. 467, 434 A.2d 1185 (1981)] requires that counsel’s brief
provide an argument of any sort, let alone the type of
argument that counsel develops in a merits brief. To repeat,
what the brief must provide under Anders are references
to anything in the record that might arguably support the
appeal.
* * *
Under Anders, the right to counsel is vindicated by
counsel’s examination and assessment of the record and
counsel’s references to anything in the record that arguably
supports the appeal.
Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:
[I]n the Anders brief that accompanies court-appointed
counsel’s petition to withdraw, counsel must: (1) provide a
summary of the procedural history and facts, with citations
to the record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3) set forth
counsel’s conclusion that the appeal is frivolous; and (4)
state counsel’s reasons for concluding that the appeal is
frivolous. Counsel should articulate the relevant facts of
record, controlling case law, and/or statutes on point that
have led to the conclusion that the appeal is frivolous.
Id. at 178-79, 978 A.2d at 361.
Instantly, appellate counsel has filed a petition to withdraw. The petition
states counsel has conducted a conscientious review of the record and
determined the appeal is wholly frivolous. Counsel also supplied Appellant
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with a copy of the brief and a letter explaining Appellant’s right to retain new
counsel or to proceed pro se to raise any additional issues Appellant deems
worthy of this Court’s attention. In the Anders brief, counsel provides a
summary of the facts and procedural history of the case. Counsel’s argument
refers to relevant law that might arguably support Appellant’s issues. Counsel
further states the reasons for his conclusion that the appeal is wholly frivolous.
Therefore, counsel has substantially complied with the technical requirements
of Anders and Santiago. Accordingly, we proceed to an independent
evaluation of the issues raised in the Anders brief. See Palm, supra.
Counsel raises the following issue on Appellant’s behalf:
Did the trial court err in finding [Appellant] to be a lifetime
registrant under the provisions of the Sex Offender
Registration and Notification Act (SORNA)?
(Anders Brief at 2).
Appellant advances two arguments to support his proposition that the
court erred by subjecting him to lifetime registration. Initially, Appellant
argues that his Colorado conviction, which only required him to register as a
sex-offender for ten years, expired in 2011.4 Appellant emphasizes that at
the time he was charged in Pennsylvania with failing to comply with
registration requirements, his Colorado registration requirements had already
expired. Thus, Appellant seems to suggest that he should not be required to
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4 Appellant acknowledges that he failed to petition the Colorado court for
removal from the registry.
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register at all in Pennsylvania.5
Even if Appellant is required to register in Pennsylvania, Appellant
emphasizes that he received a letter from the PSP which stated that he is
subject to reporting requirements for 15 years, and not lifetime.6 Appellant
claims the court was bound by the PSP’s determination of the length of his
registration requirement. Appellant concludes that he is entirely exempt from
his registration requirements, or that the length of registration should be
reduced.
In evaluating Appellant’s claims as frivolous, counsel explains that
Appellant is required to register in Pennsylvania because he never petitioned
for removal from the Colorado registry. Counsel states that Appellant’s ten
Colorado convictions for sexual exploitation of a child are similar to the
Pennsylvania offenses of sexual abuse of children. Counsel reasons that
because Appellant has two or more convictions of a similar crime to sexual
abuse of children, and has not completed his Colorado registration
requirements, he is a lifetime registrant under Subchapter I. For the following
reasons, we cannot agree with counsel’s assessment that Appellant’s appeal
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5 We reject this argument outright. This Court has already decided that
Appellant is required to register as a sex offender in Pennsylvania. See
Thompson, supra at 7.
6 Appellant relies on a letter from Lieutenant Todd L. Harman, dated November
21, 2016, advising Appellant that his registration classification was changed
to Tier 1, which required him to register with the PSP for 15 years.
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is frivolous.
Subchapter I of SORNA II provides, in relevant part, as follows:
§ 9799.55. Registration
(a) Ten-year registration.--Except as provided
under subsection (a.1) or (b), the following individuals shall
be required to register with the Pennsylvania State Police
for a period of 10 years:
(1)(i)(A) Individuals convicted within this Commonwealth of
any of the following offenses committed on or after April 22,
1996, but before December 20, 2012:
18 Pa.C.S. § 2901 (relating to kidnapping) where the
victim is a minor.
18 Pa.C.S. § 3126 (relating to indecent assault) where
the offense is graded as a misdemeanor of the first
degree or higher.
18 Pa.C.S. § 4302 (relating to incest) where the victim is
12 years of age or older but under 18 years of age.
18 Pa.C.S. § 5902(b) or (b.1) (relating to prostitution
and related offenses) where the actor promotes the
prostitution of a minor.
18 Pa.C.S. § 5903(a)(3), (4), (5) or (6) (relating to
obscene and other sexual materials and performances)
where the victim is a minor.
18 Pa.C.S. § 6312 (relating to sexual abuse of children).
18 Pa.C.S. § 6318 (relating to unlawful contact with
minor).
18 Pa.C.S. § 6320 (relating to sexual exploitation of
children).
(B) Individuals convicted within this Commonwealth of
an offense set forth in clause (A) who were required to
register with the Pennsylvania State Police under a
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former sexual offender registration law of this
Commonwealth on or after April 22, 1996, but before
December 20, 2012, whose period of registration has not
expired.
(ii) Individuals convicted within this Commonwealth of
any of the following offenses committed on or after
January 26, 2005, but before December 20, 2012:
18 Pa.C.S. § 2910 (relating to luring a child into a motor
vehicle or structure).
18 Pa.C.S. § 3124.2 (relating to institutional sexual
assault).
(2) Individuals convicted of an attempt, conspiracy or
solicitation to commit any of the offenses under paragraph
(1)(i) or (ii) or subsection (b)(2).
(3) Individuals who currently have a residence in
this Commonwealth who have been convicted of
offenses similar to the crimes cited in paragraphs
(1)(i) or (ii) and (2) under the laws of the United
States or one of its territories or possessions, another state,
the District of Columbia, the Commonwealth of Puerto Rico
or a foreign nation or under a former law of this
Commonwealth.
(a.1) Exception to 10-year registration.--Except as
provided under subsection (b), an individual considered to
be an offender under section 9799.56(b) (relating to
registration procedures and applicability) shall be required
to register with the Pennsylvania State Police for a period
less than life, the duration of which is to be determined
under sections 9799.54 (relating to applicability) and
9799.56(b).
(b) Lifetime registration.--The following individuals
shall be subject to lifetime registration:
(1) An individual with two or more convictions of
any of the offenses set forth in subsection (a).
* * *
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42 Pa.C.S.A. § 9799.55(a), (a.1), (b)(1) (emphasis added).
As the statute dictates, a ten-year registration period applies to
individuals convicted of certain enumerated offenses committed on or after
April 22, 1996, but before December 20, 2012. See 42 Pa.C.S.A. §
9799.55(A)(1)(i)(A). Additionally, a ten-year registration period applies to
individuals who reside in Pennsylvania and have been convicted of offenses
similar to the crimes cited in paragraphs (1)(i) or (ii). See 42 Pa.C.S.A. §
9799.55(a)(3). Nevertheless, an individual with two or more convictions of
any of the offenses set forth in subsection (a), is subject to lifetime
registration. See 42 Pa.C.S.A. § 9799.55(b).
In Commonwealth v. Lutz–Morrison, 636 Pa. 395, 143 A.3d 891(2016), our Supreme Court addressed language in SORNA I that subjected
sex offenders to lifetime registration where they had “two or more convictions”
for certain enumerated offenses. The Supreme Court held that SORNA I
encompassed a recidivist philosophy. “As such, the statute requires an act, a
conviction, and a subsequent act to trigger lifetime registration for multiple
offenses otherwise subject to a” lesser period of registration. Id. at 402, 143
A.3d at 895. See also Commonwealth v. Keech, 226 A.3d 614 (Pa.Super.
filed January 6, 2020) (unpublished memorandum)7 (applying Lutz-Morrison
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7 An unpublished non-precedential memorandum decision of the Superior
Court filed after May 1, 2019, may be cited for its persuasive value. See
Pa.R.A.P. 126(b)(1) and (2).
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and holding that appellant’s guilty pleas to corruption of minors and indecent
assault did not constitute “two or more convictions” of certain enumerated
offenses where convictions arose from criminal conduct alleged in single
criminal information, resulting in single criminal case).
Instantly, notwithstanding counsel’s assertions that Appellant’s guilty
plea to ten counts of sexual exploitation in Colorado constituted “two or more
convictions” of a similar crime to sexual abuse of children in Pennsylvania,
counsel has not discussed the applicability, if any, of Lutz-Morrison to the
facts of this case. Although our Supreme Court analyzed Lutz-Morrison
under SORNA I, a potentially meritorious claim exists regarding whether the
same “recidivist philosophy” espoused in that case applies under SORNA II.
Accordingly, we deny counsel’s petition to withdraw and remand for the filing
of an advocate’s brief. See Wrecks, supra at 721 (stating: “if there are non-
frivolous issues, we will deny the petition and remand for the filing of an
advocate’s brief”). See also Commonwealth v. Yorgey, 188 A.3d 1190,
1197 (Pa.Super. 2018) (en banc) (stating: “We need not analyze those issues
of arguable merit; just identify them, deny the motion to withdraw, and order
counsel to analyze them”).8 We grant appellate counsel 30 days from the
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8 We recognize that this Court can sua sponte raise and analyze meritorious
issues disregarded in the Anders brief where the meritorious claim implicates
the legality of the sentence. See, e.g., Commonwealth v. Hankerson, 118
A.3d 415 (Pa.Super. 2015) (agreeing with counsel’s assessment of issues
raised in Anders brief but sua sponte vacating sentence that included
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date of this decision to file an advocate’s brief, and the Commonwealth 30
days thereafter to file a responsive brief. See Commonwealth v. Tejada,
176 A.3d 355 (Pa.Super. 2017) (providing similar remand instructions).
Case remanded for the filing of an advocate’s brief. Counsel’s petition
to withdraw is denied. Panel jurisdiction is retained.
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unconstitutional mandatory minimum). In this case, however, Appellant’s
registration requirements under Subchapter I do not implicate the legality of
the sentence. See Commonwealth v. Lacombe, ___ Pa. ___, 234 A.3d 602(2020) (holding Subchapter I of SORNA II is nonpunitive and does not violate
constitutional prohibition against ex post facto laws).
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